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Mark Rieber—Senior Attorney

            Ever since Rodriguez v. United States, 135 S. Ct. 1609 (2015), courts have had to decide whether evidence discovered during routine traffic stops should be suppressed on the ground that the police unreasonably prolonged the traffic stop, even for a short time, to investigate matters unrelated to the purpose of the stop, and what should be considered matters unrelated to the purpose of the stop.  A good example is the recent decision in Lerma v. State, No. PD-1229-16, 2018 WL 525427 (Tex. Crim. App. Jan. 24, 2018), in which the court reversed the Court of Appeals’ decision suppressing evidence discovered on a passenger of a vehicle during a routine traffic stop.  Contrary to the Court of Appeals’ holding, the Court of Criminal Appeals (Texas' highest court for criminal cases) determined that the officer conducting the traffic stop had reasonable suspicion to pat-down the passenger and that by questioning the passenger and patting him down, the officer did not unduly prolong the stop in violation of the holding in Rodriguez or the holding in St. George v. State, 237 S.W.3d 720 (Tex. Crim. App. 2007), upon which the Court of Appeals relied. Read More

Suzanne Bailey, Senior Attorney, National Legal Research Group

            A recent decision from the Fourth Circuit Court of Appeals is a reminder of both the strength of federal forfeiture laws and the limits on the right to appellate counsel. On a practical level, it illustrates the danger of assuming that assets that might be subject to postconviction forfeiture will be available to pay for an appeal.

            Following his convictions for a host of drug, conspiracy, and money laundering offenses, and following the court's order for forfeiture in the amount of $51.3 million, the defendant in United States v. Marshall, 872 F.3d 213 (4th Cir. 2017), made a motion in the district court to release $59,000 in the defendant's credit union account in order to pay for his appeal. The motion correctly noted that the order of forfeiture did not specifically mention the $59,000 credit union assets. Although the Government previously had filed a bill of particulars providing notice that it intended to seek the forfeiture of the $59,000 in the credit union account, the bill did not indicate whether the Government classified the credit union funds as assets derived from the crimes pursuant to 21 U.S.C. § 853(a) or substitute assets pursuant to 21 U.S.C. § 853(p), that is, assets that are a substitute for assets derived from the crime that cannot be located due to an act or omission of the defendant. Three and one-half weeks later, the Government filed—and the district court granted—a motion for a second order of forfeiture, specifically requesting the forfeiture of the funds in the credit union account and classifying them as substitute assets. The defendant then brought his motion to use the "untainted" substitute assets to pay for his appeal in the Fourth Circuit Court of Appeals, which stayed appellate proceedings while it decided the motion. The court ultimately denied his motion.

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Mark Rieber, Senior Attorney, National Legal Research Group 

            In Commonwealth v. Mauricio, 477 Mass. 588, 80 N.E.3d 318 (2017), the court held that, under the Massachusetts Constitution, the search of data contained in digital cameras falls outside the scope of the "search incident to a lawful arrest" exception to the warrant requirement.  In so holding, the court found the reasoning set forth in Riley v. California, 134 S. Ct. 2473 (2014), applicable to digital cameras.  In Riley, the U.S. Supreme Court held that the search incident to arrest exception did not apply to cell phones. Riley found that applying the exception to the search of digital data on a cell phone served neither of the two justifications for the exception: prevention of harm to officers and prevention of destruction of evidence. Riley also recognized the privacy interests at stake, since cell phones "place vast quantities of personal information literally in the hands of individuals." Id.  at 2485.

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Suzanne Bailey, Senior Attorney, National Legal Research Group

      Following the exhilaration accompanying a reversal of a criminal conviction, the former defendant must begin efforts to mitigate the damage, not the least of which may be repairing the financial harm of participating in the criminal justice system. In a seven to one decision (Justice Gorsuch did not participate), the U.S. Supreme Court addressed the Colorado statutory scheme for the refund of costs, fees, and restitution paid pursuant to the invalid conviction and concluded that the Compensation for Certain Exonerated Persons Act (Exoneration Act), Colo. Rev. Stat. §§ 13-65-101 to 13-65-103 (2016), violated due process by requiring defendants whose convictions have been reversed or vacated to prove their innocence by clear and convincing evidence in order to obtain a refund.  Nelson v. Colorado, 137 S. Ct. 1249, 197 L. Ed. 2d 611 (2017).  

      There were two petitioners in Nelson:  (1) Shannon Nelson sought a refund of $702.10 withheld from her inmate account with the Colorado Department of Corrections toward an assessment of $8,192.50 in court costs, fees, and restitution following a reversal of her conviction for sexual and physical abuse of her four children and acquittal after retrial; and (2) Louis Alonzo Madden asked for a refund of $1,977.75 he paid toward assessed court costs, fees, and restitution totaling $4,413.00 after his conviction for patronizing a prostituted child was reversed on direct appeal, his conviction for attempted third-degree sexual assault by force was vacated on postconviction relief, and the State elected not to appeal or retry the case. Neither petitioner proceeded under the Exoneration Act.  The Colorado Supreme Court held that the Exoneration Act was the sole means of seeking a refund and, thus, the courts were without authority to refund the money paid.  Moreover, the Colorado court found no due process problem because the Act provided sufficient process to defendants seeking refunds. Justice Ginsberg, writing for the U.S. Supreme Court, disagreed.

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Mark Rieber, Senior Attorney, National Legal Research Group

            Generally, a lawful search warrant may not be procured by the use of illegally obtained information.  E.g., State v. Cuong Phu Le, 463 S.W.3d 872, 877 (Tex. Crim. App. 2015), cert. denied, 136 S. Ct. 819 (2016).  As a matter of first impression, however, the Texas Court of Criminal Appeals held that the Texas good-faith exception to the statutory exclusionary rule applied to a search executed pursuant to a search warrant that was based on information obtained from an illegal drug sniff.  McClintock v. State, No. PD-1641-15,2017 WL 1076289 (Tex. Crim. App. Mar. 22, 2017).  The drug-sniffing dog had been brougcrimcht by police to the door of the defendant's upstairs residence, where the dog alerted police to the presence of drugs.  This information was used as the basis for a search warrant for the residence, and there would have been no probable cause without the information.  Execution of the warrant resulted in the seizure of marijuana.  While the case was pending on appeal, the United States Supreme Court held that such dog sniffs constituted an unconstitutional search under the Fourth Amendment.  See Florida v. Jardines, 133 S. Ct. 1409 (2013).  Prior to the holding in Jardines, according to McClintock, it was not clear that the dog sniff used in McClintock was illegal. 

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Jason Holder, Senior Attorney, National Legal Research Group

      In United States v. Carey, 836 F.3d 1092, 1093 (9th Cir. 2016), federal agents secured a wiretap order under the Wiretap Act, 18 U.S.C. §§ 2510-2522. The order was based upon evidence that Ignacio Escamilla Estrada ("Escamilla") used the number to smuggle and distribute drugs. Carey, 836 F.3d at 1093. During the seven-day wiretap, the agents realized that Escamilla was not the one using the phone. Id. Nevertheless, believing that those on the phone may be connected to Escamilla, the agents continued listening. Id. Authorities ultimately identified Michael Carey as the unknown speaker. Id. The investigation revealed that Carey was not involved with Escamilla. Id. at 1094.

     Carey moved to suppress all of the evidence derived from the use of the wiretaps, arguing that the government had unlawfully relied on the Escamilla order to justify the independent and unrelated use of wiretap surveillance against Carey. Id. The district court denied Carey's motion, explaining that (1) the government had complied with the statute for the wiretap order against Escamilla, and (2) that there was no requirement for a separate showing of necessity once the agents concluded that T-14 was not used by Escamilla because the agents reasonably believed that the callers and calls might be affiliated with Escamilla or other offenses. Id. at 1095.

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The Lawletter Vol 42 No 1

Mark Rieber, Senior Attorney, National Legal Research Group

      In Johnson v. United States, 135 S. Ct. 2551 (2015), the U.S. Supreme Court held that the residual clause of the Armed Career Criminal Act ("ACCA"), which defines a "violent felony" to include a felony that "involves conduct that presents a serious potential physical injury to another," 18 U.S.C. § 924(e)(2)(B), was unconstitutionally vague. The Supreme Court subsequently announced that the rule in Johnson was "a new substantive rule that has retroactive effect in cases on collateral review." Welch v. United States, 136 S. Ct. 1257, 1268 (2016).

      In Carpio v. United States, No. C16-0647JLR, 2016 WL 6395192 (W.D. Wash. Oct. 28, 2016), the court applied the holdings in Johnson and Welch to the defendant's claim, in a 28 U.S.C. § 2255 petition challenging his U.S. Sentencing Guidelines sentence, that the identically worded residual clause in U.S.S.G. § 4B1.2(a), defining "crime of violence," used to enhance the defendant's sentence, was unconstitutionally vague. The court in Carpio held that the Johnson holding applied with equal force to the residual clause in section 4B1.2(a) of the Sentencing Guidelines and, therefore, it was unconstitutionally vague.

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The Lawletter Vol 41 No 8

Jason Holder, Research Attorney, National Legal Research Group

     In State v. Loomis, 2016 WI 68, 881 N.W.2d 749, the Supreme Court of Wisconsin upheld the use of risk assessment tools at sentencing against a due process challenge. In doing so, however, the Loomis court noted that such tools are consistent with due process protections only if they are used properly and in accordance with certain limitations. Additionally, the court may have provided a possible road map for future challenges to the use of risk assessment tools at sentencing.

     Loomis had been charged with a number of offenses stemming from a drive-by shooting and ultimately pleaded guilty to two of the lesser offenses. A presentence investigation report was prepared and included a Correctional Offender Management Profiling for Alternative Sanctions ("COMPAS") risk assessment. In ruling out probation, the circuit court noted that it did so because "of the seriousness of the crime and because your history, your history on supervision, and the risk assessment tools that have been utilized, suggest that you're extremely high risk to re-offend." Id. ¶ 19, 881 N.W.2d at 755.

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Mark Rieber, Senior Attorney, National Legal Research Group

     In United States v. Lambis, No. 15CR734, 2016 WL 3870940 (S.D.N.Y. July 12, 2016), a federal court, apparently for the first time, suppressed evidence obtained as the result of the warrantless use of a cell-site simulator to locate a target's cell phone. The court explained that a cell-site simulator—sometimes referred to as a "StingRay," "Hailstorm," or "TriggerFish"—is a device that locates cell phones by mimicking the service provider's cell tower (or "cell-site") and forcing cell phones to transmit "pings" to the simulator. The device then calculates the strength of the "pings" until the target phone is pinpointed.

     The court's holding relied mainly on Kyllo v. United States, 533 U.S. 27 (2001), which held that a Fourth Amendment search occurred when government agents used a thermal-imaging device to detect infrared radiation emanating from a home. In Kyllo, the Supreme Court reasoned that "[w]here . . . the Government uses a device that is not in general public use to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a 'search' and is presumptively unreasonable without a search warrant." Id. at 40.

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